RIAA: giving music away for free worse than charging for it

The third file-sharing trial for Jammie Thomas-Rasset wrapped up today with …

Testimony in the Jammie Thomas-Rasset file-sharing re-retrial concluded today as Thomas-Rasset took the stand and told the jury that she considers herself a big supporter of the music industry (read our coverage of day one). "I was buying my music," she said. "I wasn't getting it for free off KaZaA."

But the jury in this case was tasked with deciding damages, not liability, which has already been assumed from her previous trial. Could Thomas-Rasset convince them this time around to hand out a lower damage award than the last $1.92 million decision? Or would the RIAA win out with its argument that distributing music freely through the KaZaA peer-to-peer network causes more harm than charging for it?

Owning up

The recording industry, like stern parents, wants the wayward defendant not just to pay up but also to take responsibility for her actions.

Universal Music Group rep Joan Cho was asked if the statutory minimum of $18,000 would be acceptable. It would not, Cho argued, due in part to "the lack of acceptance by the defendant for what she'd done." Another label rep blasted Thomas-Rasset's "avoidance of responsibility," adding that "the minimum is probably low considering her behavior."

In his closing statement, recording industry attorney Tim Reynolds banged the point home. Thomas-Rasset "still refuses to accept responsibility," he told the jury. "The only reason she's not pointing the finger [at someone else] is because she can't."

Thomas-Rasset tried to walk the Responsibility Tightrope in this case, agreeing that a previous jury had found her liable and that she accepted that conclusion, but without agreeing that she had in actuality committed the file-sharing in question.

Thus, when Thomas-Rasset took the stand and was asked whether she "did it," she answered, "I have no choice. I've been found liable." When asked again about whether she did it, Thomas-Rasset again deflected the question. "I don't think that's an issue at this point... I'm liable. I'm responsible."

This was a balancing act. The defense doesn't want to admit that Thomas-Rasset actually engaged in file-sharing, but neither does it want to play into the recording industry's narrative that Thomas-Rasset shirks responsibility. So she took responsibility and simply bracketed the question of liability... most of the time (see her first quote above).

Sympathy for the devil

Having the liability question settled made Thomas-Rasset's defense simpler. Rather than look evasive on the stand, she tried to accept (some) responsibility and instead make a case for a minimum damage award based on her personal circumstances.

She told the jury about life on the Ojibwe reservation here in Minnesota. She described her four children. She talked about meeting her husband on Match.com. She stressed the length of this case, the "huge impact" it has made on her life, the way "I have been passed up for promotion because of the publicity of this." Her kids' teachers even ask them about the progress of the case.

Then came the money. Thomas-Rasset said she lived (and still to some extent lives) paycheck to paycheck. She rang up $100,000 in fees from her first attorney, who eventually bailed on her case but did forgive the debt. Her current lawyers are working pro bono. She told the jury that a $36,000 damage award, one twice the bare minimum, would be "roughly my salary from my job every year" and that even the $18,000 minimum would "devastate my family."

Thomas-Rasset even positioned herself as something of an antipiracy crusader. Her neighbor, the "sweetest old man," would get some of his music "free" from LimeWire. Thomas-Rasset says she told him, "No, it's not free. It's not." There are, she says, "so many other options out there for buying music."

One could sense the collective gag reflex from the recording industry lawyers, who even dragged out old interviews Thomas-Rasset had done with the CBS Early Show and others in which she had said nothing about the illegality of her file-sharing, but the clear plea for sympathy was effective; when the jury finally retired to consider the question of damages, they sent out a question only ten minutes later: could they consider Thomas-Rasset's finances when deciding on a damage amount?

The judge called the jury back into court and said that yes, they could.

Heads on pikes

The theme of Thomas-Rasset's closing statement: this case is a brutal witch hunt. Lawyer Kiwi Camara blasted the recording industry for crucifying Thomas-Rasset in order to get the bogeyman story it wants to frighten others. They "plucked her out to make headline news," he charged. "They want a big headline."

But that desire doesn't mean it's fair for the music labels to hack off Thomas-Rasset's head and "put it on a pike" to send a message to others. Millions of college students still share files, and the record labels still dash off letters to universities, asking the infringement to stop. Under what conception of fairness was it right that so many people would get a letter, while Thomas-Rasset would have her life trashed?

Label lawyer Tim Reynolds was having none of it. It's "ludicrous" to suggest the RIAA was mining the case for publicity, he countered. After all, who was going around giving interviews to the CBS Early Show and many others?

In the end, he said that Thomas-Rasset needed to take responsibility, that she was not the innocent victim she claimed, and that in fact "giving music away for free causes more harm" than charging people for it—at least the real pirates help keep the perceived value of music up.

And with that, the case was handed to the jury. (Harvard Law professor Charles Nesson's amicus brief regarding jury instructions? Denied.)